Transitional Amnesty in South Africa / Antje du Bois-Pedain.

Format:

Book

Author/Creator:

Du Bois-Pedain, Antje.

Series:

Cambridge books online.

Language:

English

Subjects (All):

Amnesty--South Africa.

Amnesty.

Restorative justice.

Political crimes and offenses.

South Africa.

Reconciliation--Political aspects--South Africa.

Reconciliation.

Reconciliation--Political aspects.

Political crimes and offenses--South Africa.

Restorative justice--South Africa.

Apartheid--South Africa--History.

Apartheid.

History.

Physical Description:

1 online resource (422 pages) : digital, PDF file(s)

Place of Publication:

Cambridge : Cambridge University Press, 2008.

System Details:

Mode of access: World Wide Web.

text file

PDF

Summary:

After the transition to democracy in 1994, South Africa reached out to perpetrators of violence from all conflicting parties by giving amnesty to those who fully disclosed their politically motivated crimes. This volume provides the first comprehensive analysis of South Africa's amnesty scheme in its practical and normative dimensions. Through empirical analysis of over 1,000 amnesty decisions made by the Amnesty Committee of the Truth and Reconciliation Commission, the study measures the scheme against its stated goals of truth recovery, victim empowerment and perpetrator accountability. It also explores normative questions raised by the absence of punishment. Highlighting the distinctive nature of South Africa's conditional amnesty as an exceptional 'rite of passage' into the new, post-conflict society, it argues that the amnesty scheme is best viewed as an attempt to construct a new 'justice script' for a society in transition, in which a legacy of politically motivated violence is being addressed.

Contents:

Note on linguistic usage, especially of the terms perpetrator and victim 14

Note on citation of sources 16

1 The TRC-based Amnesty Scheme: Background and Overview 17

The amnesty provisions of the TRC Act 20

Preconditions and effect of amnesty 20

The history and interpretation of the amnesty provisions 23

The constitutional challenge to the amnesty provisions 29

The work of the Amnesty Committee 35

The examination of amnesty applications 37

The influence of previous indemnity legislation on application numbers 40

Judicial review of amnesty decisions 44

After the TRC: pardons, prosecutions and rumours of further amnesties 54

2 The Practice of the Committee When Making Decisions 60

Methodology of the study 62

Information base 62

Relevant criteria 63

Indicative value of an application's outcome in respect of these factors 65

Calculation of success rates 66

Recorded information 66

Findings in relation to applicants and incidents 68

The applicants and their deeds 68

Implications of the quantitative findings for the representativity of amnesty applications 71

Hierarchical status of applicants within their organisation 73

Applicants' mandates: orders, discretion and spontaneous (re-)action 76

Outcome of amnesty applications 80

Reasons given for the success of applications 84

Reasons given for the failure of applications 92

3 The Committee's Interpretation of the Political Offence Requirement 97

The purposive nature of the political offence 98

Assessment from an ex-ante perspective 101

Responsibility for human rights violations 104

The applicant's political mandate 106

The personal mandate 109

The general mandate 111

Reasonable belief in the existence of a mandate 113

The significance of orders 113

The multiple functions of orders 114

The 'foot-soldier privilege' 116

Orders in the amnesty process: privileging 'crimes of obedience'? 118

The Committee's approach to factors affecting the gravity of the offence 121

The application of the proportionality principle 122

International law concepts in the amnesty decisions 126

The Committee's approach to the gravity of the deed: an evaluation 128

Explaining the Committee's pragmatic approach to the political offence requirement 132

4 The Concept of Full Disclosure 139

The object and scope of full disclosure 141

The truth-maximising view 143

The restrictive approach 147

The Committee's middle way 151

Relevant facts 152

The 'relevancy threshold' for details 155

The consequences of non-disclosure of a relevant fact 157

The legal standard for the finding that full disclosure has been made 158

Evidential burden and 'benchmark' for full disclosure 158

The legal test 160

The time and manner of disclosure 163

The assessment of the evidence 165

Admissible evidence and the 'hierarchy' of evidential sources 165

Applicant's version unchallenged 167

Relevant conflicting evidence 169

Full disclosure: an assessment 172

5 Truth Recovery in the Amnesty Process 175

Procedural practice affecting the scope of the enquiry 178

The investigative objectives of the amnesty process 178

The organisation of the process 180

Getting witnesses to testify: legal powers and Committee practice 181

Role and rights of implicated persons 183

Privileged information 186

Discovery and documentation of truth in the amnesty process 189

The discovery function: evidence used 189

(a) Cross-examination and the dangers of accomplice evidence 191

(b) The use of hearsay evidence 194

The documentation function: findings made 200

Available evidence and findings: individual amnesties and criminal trials compared 204

The amnesty process and different dimensions of truth 214

6 Victim Empowerment in the Amnesty Process 217

Victim participation in the amnesty process 222

The power of dialogue: the victims of Jeffrey Theodore Benzien 225

The price of engagement: the victims of Robert McBride 232

The struggle for forgiveness: the mother of Lindi-Ann Fourie 243

The amnesty process and victims' needs 247

Opportunities for victims: criminal trials and amnesty proceedings compared 250

7 Perpetrator Accountability in the Amnesty Process 257

The notion of accountability 260

The amnesty process as a call to account 264

The retributivist challenge: no accountability without sanctions? 273

Restorative justice to the rescue? 281

The place of apology and forgiveness 286

Conditional amnesty for political crime: a new justice script? 293

8 Conditional Amnesty and International Law 300

Prescriptive international standards which restrict sovereign grants of amnesty 302

Humanitarian law 303

Crimes against humanity 307

General human rights law 310

Human rights treaties addressing specific violations 317

Do duties to prosecute rule out conditional amnesties? 319

The relevance of international law duties to prosecute for the South African amnesty scheme 322

Invocations of international law in the South African transition 328

After South Africa: conditional amnesty in future transitions 333

Feasibility 339

Legality 341

Morality 342.

Notes:

Title from publishers bibliographic system (viewed on 30 Apr 2012).

Other Format:

Print version:

ISBN:

9780511495120

9780521878296

Access Restriction:

Restricted for use by site license.